Senator NETTLE (7:56 PM)
—A free press is fundamental to a free society. When cities first began, democracy relied on the debate and argument that occurred in the Greek marketplace, where information was shared, ideas were aired and discussed. Now the marketplace of ideas is much bigger, and a free media is fundamental to our modern conceptions of democracy. Indeed, Thomas Carlyle argued that what he called the Fourth Estate can be conceived as democracy itself because it allows the people to debate and discuss the affairs of state. For a long time a free press has been an essential part of Australia’s democracy.

In 1824, in my state of New South Wales, the first Australian born politician, William Charles Wentworth, founded one of Australia’s first independent newspapers, the Australian. The birth of a free press was a breath of fresh air to the colonies, which had been weighed down by almost 40 years of government control and censorship. While there is much to criticise about today’s media, not least the monopoly of its ownership, the Greens believe the newspapers, now joined by the internet, television and radio, still form the backbone of our democratic processes. That is why we share the concerns of most of the Australian media outlets and much of the Australian public about the direction of media and public freedom in this country. Ten years of the Howard government have put a clamp on free speech and the public’s right to know about the workings of government. Policy has been replaced by spin, substance by rhetoric, and the cold hand of censorship is on the march again. Sydney journalist David Marr describes it this way:

John Howard has the loudest voice in Australia. He has cowed his critics, muffled the press, intimidated the ABC, gagged scientists, silenced NGOs, censored the arts, prosecuted leaders, criminalised protest and curtailed parliamentary scrutiny.

Australia’s Right to Know, a coalition of Australia’s major media outlets, say:

Australia risks undermining one of its main pillars of democracy if erosions to free speech continue.

They say this is a bipartisan problem of ‘national importance regardless of who is in power’ and that the problem is longstanding, with both ‘Labor and the coalition governments at state and federal levels presiding over a serious deterioration in the freedoms we take for granted’. They describe it this way:

There has been an alarming slide into censorship and secrecy that has severely reduced what ordinary Australians are allowed to know about how they are governed and how justice is dispensed.

They say there are more than 500 separate prohibitions governing the things that Australians are not allowed to know. These laws and restrictions vary from state to state, making it hard for the media to report.

The government would like to claim that the Evidence Amendment (Journalists’ Privilege) Bill 2007 bucks this trend. They claim that the bill seeks to protect journalists and their sources. In fact it does nothing of the sort; rather this bill is further window-dressing of the government’s attack on free speech in this country. This bill does the bare minimum that could be done to protect journalists’ sources. It does not afford any protection to whistleblowers. It does not afford any protection to other professionals and their sources. It does not recognise the public interest in ensuring journalists’ sources are kept confidential and, once again, it drops the veil of national security over the whole bill, making it the overriding factor in any decision about whether or not a source can be protected.

I will say more on the problem of national security later, but first I want to talk about the inadequate scope of the bill. The bill is based on division 1A of the New South Wales Evidence Act 1995. However, there is a significant difference. This bill only applies to journalists, while the New South Wales bill allows a range of other professionals—doctors and counsellors, for example, and their informants or their clients—to claim protection. This bill explicitly limits protection to journalists and their sources. It is a major flaw in the bill.

There are a range of professionals that should be able to claim these types of protection: medical and health professionals, counsellors and religious advisors. There is no reason why a court could not weigh the balance of the harm caused by revealing a source for these professions against the importance of the evidence or information in the particular proceedings—just as they could in relation to a journalist. But it seems that, because the government wants to deal with a political problem of journalists being prosecuted for contempt, rather than dealing with the policy question it has opted for this narrowly framed bill. In fact, so narrow is the scope of the bill—combined with the limitations and qualifications contained in the bill—that it seems almost certain that journalists, such as Gerard McManus and Michael Harvey, and their sources, would still be prosecuted if this bill were to become law.

Proposed section 126D of the bill provides that when a communication between the source and the journalist involves fraud or an offence, the privilege or protection cannot apply. As a result, public servants, who in most cases would be committing an offence if they carried out an unauthorised disclosure to the media, would not be shielded by these laws, and nor would the journalists involved. In other words, whistleblowers remain out in the cold. Given this incredible inadequacy of the bill one could say, as the Media, Entertainment and Arts Alliance says, that this bill ‘will amount to nothing more than rhetoric without accompanying protected disclosure laws to prevent whistleblowers from being hunted down and prosecuted’.

Now more than ever there is a profound need for whistleblower protection in this country. Whistleblowers are, and have been, an essential bulwark in the rise of executive power at the expense of democracy, not just in Australia but around the world. Let us recall this important role. Without whistleblowers, the Watergate scandal would never have become public, and Nixon would not have had to resign. Without anonymous sources we would never have learnt about the torture at Abu Ghraib prison in Iraq. Yet once again the government has dumped the opportunity that this bill could have provided to protect whistleblowers. The Australian Press Council’s Charter for a free press in Australia states:

Freedom of opinion and expression is an inalienable right of a free people.

That right is recognised in article 19 of the United Nations Declaration of Human Rights. The Press Council’s charter has six principles, and the sixth principle states:

Laws, regulations and practices which in any way restrict or inhibit the right of the press freely to gather and distribute news, views and information are unacceptable unless it can be shown that the public interest is better served by such laws, regulations or practices than the public interest in the people’s right to know.

It is the public interest that should be at the heart of any laws to protect journalists’ sources, and it is the public interest that is missing from this bill.

A court that is examining whether or not a journalist’s source should be protected should be able to assess not only the public interest of the particular case but the wider public interest of a free press that is in part built on the public’s confidence that information provided should remain confidential. That is why the Greens will move an amendment to this legislation to include consideration of the public interest as a factor in a judge’s deliberation on protecting a journalist’s source. The amendment will add an additional item to the proposed section 126B of the Evidence Act that lists the matters a court should consider. The Greens amendments ensure that, in addition to the matters already listed, the court will now also be required to consider ‘the public interest in maintaining the protected confidence of journalists’ sources’. I urge senators to support this amendment.

Irene Khan, Secretary General of Amnesty International, says in this year’s Amnesty report on the state of the world’s human rights that ‘national security has often been used as an excuse by governments to suppress dissent’ and that ‘in recent years heightened fears about terrorism and insecurity have reinforced repression’. The report shows how, around the world, national security has become a catch-all used and abused by governments seeking to justify suppression of political and civil rights, the removal of civil liberties and the abuse of human rights. In this country national security has underpinned the suppression of the truth about David Hicks and Mamdouh Habib and attacks on the rights of refugees. It has been the platform on which a raft of new terrorism laws has been introduced. The Greens have always supported sensible measures like increases to airport security, but the government has gone overboard with laws like new sedition offences, control orders and banning organisations.

One of the worst aspects of the new terrorism laws is the use of national security to suppress government information and create closed trials. The National Security Information (Civil and Criminal Proceedings) Act 2004 allows the Attorney-General to suppress evidence in proceedings, based on a very broad definition of national security. This new bill includes a clause, which is not included in similar state legislation, which will require a judge to use the same definition of national security as in the terrorism laws, when assessing whether to protect a journalist’s sources. This clause goes to the heart of the failure of this bill because it clearly would not protect whistleblowers such as those who are in fact acting in the public interest by revealing major flaws in Australia’s airport security. Worst of all, it requires a judge to give the ‘greatest weight’ to national security when deciding whether the protection should be maintained. The Greens will move an amendment to remove this bias in the bill towards national security. We accept that national security is a factor that a judge should consider in assessing the necessity of protecting journalists’ sources, but it should not be the overriding factor, and I urge senators to support this amendment.

This bill is extremely flawed. It has been rushed in as a political fix for the very public criticisms levelled by media outlets and concern amongst journalists about the prosecution of their colleagues. There are other models that could have been looked at, like that in New South Wales, in its entirety, and the New Zealand model, which offers much more robust protection, with protection of a source the default position from which a case has to be argued to vary. It should have been part of a package of reform that also protected whistleblowers. The fact that the government has refused to allow a Senate inquiry into this bill has prevented the parliament from being able to examine these other options. The government has again wasted an opportunity to improve the framework for public debate and free discussion in Australian society. Once again, while paying lip-service to freedom, it has done the opposite, relying on spin rather than substance. And, once again, freedom of the press has taken a back seat to the government’s political ambitions.